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Strasbourg, 20 March 2018 CDL-AD(2018)010 Study No. 908/2017 Or. Eng EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) REPORT ON TERM-LIMITS PART I - PRESIDENTS Adopted by the Venice Commission at its 114th Plenary Session (Venice, 16-17 March 2018) On the basis of comments by Mr Josep Maria CASTELLA ANDREU (Member, Spain) Ms Sarah CLEVELAND (Member, United States) Mr Jean-Jacques HYEST (Substitute member, France) Mr Ilwon KANG (Member, South Korea) Ms Janine M. OTÁLORA MALASSIS (Member, Mexico) Mr Kaarlo TUORI (Member, Finland) . This document will not be distributed at the meeting. Please bring this copy. www.venice.coe.int CDL-AD(2018)010 - 2 - Table of Contents I. Introduction ................................................................................................................... 3 II. Comparative survey of limits on presidential terms in the constitution ........................... 3 III. Some examples of limitations on presidential terms in recent constitutional history ....... 4 IV. Previous works of the Venice Commission on limiting presidential mandates .......... 10 V. The international standards applicable to the right to vote and be elected ................... 12 VI. Does a human right to re-election exist? If so, what are the limits to this right? ....... 16 VII. Do term limits unduly limit the human and political rights of aspirant candidates? ... 17 VIII. Do term limits unduly limit the human and political rights of voters? ........................ 20 IX. What is the best way to modify term limits within a constitutional state? .................. 21 X. Conclusion .................................................................................................................. 23 - 3 - CDL-AD(2018)010 I. Introduction 1. By a letter dated 24 October 2017, the Secretary General of the Organization of American States (OAS) invited the Venice Commission to undertake a study on the right to re-election, against the background of a recently observed bad practice of modification of presidential terms through a decision of constitutional courts rather than through a reform process. 2. OAS put four questions: - Does a human right to re-election exist? If so, what are the limits to this right? - Do term limits constrain the human and political rights of aspirant candidates? - Do term limits constrain the human and political rights of voters? - What is the best way to modify term limits within a constitutional state? 3. Mr Castella Andreu, Ms Cleveland, Mr Hyest, Mr Kang, Ms M. Otálora Malassis and Mr Tuori acted as rapporteurs. 4. It was decided to split the study into three parts: a) term-limits of presidents, b) of members of parliament and c) of locally elected representatives. 5. The present report, which deals with the first part of the study, was examined by the Council for Democratic Elections on 15 March 2018 and subsequently adopted by the Venice Commission at its 114thPlenary Session (Venice, 16-17 March 2018). II. Comparative survey of limits on presidential terms in the constitution 6. A comparative survey of constitutional provisions on limits on presidential terms in Venice Commission member states and other selected states (CDL-REF(2018)009) has been prepared.1 It concerns both presidential (or semi-presidential) and parliamentary regimes, and in the latter both directly and indirectly elected presidents. 7. The survey indicates that there are five main models of limitation of presidential term limits: - No limitation at all, either in the absence of any provision to the contrary (Azerbaijan,2 Belarus,3 possibly Bolivia,4 Costa Rica, Cyprus, Iceland,5 Italy6) or with a specific provision allowing for unlimited re-election (Venezuela7); - Limitation on consecutive terms (with no maximum number): Peru, Chile, San Marino8, Switzerland,9 Uruguay; - Limitation through fixed number (two) of possible terms: Albania, Algeria, Croatia, Greece, Hungary, Ireland, Kosovo, Montenegro, Poland, Portugal, Romania, Serbia, South Africa, “the former Yugoslav Republic of Macedonia”, Tunisia, Turkey, USA; 1 See also a previous comparative table on the limitation of consecutive terms in elected office, CDL- REF(2012)026. 2 Limitation removed by referendum in 2009. 3 Limitation removed by referendum in 2004. 4 The legal situation is unclear, after the limitation was declared non-applicable by the Constitutional Court in 2017. 5 Parliamentary system with a directly elected president. 6 Parliamentary system with an indirectly elected president. 7 Since a constitutional amendment of 2009. 8 Two Capitani Reggenti are indirectly elected for a term of six months. 9 Parliamentary system with an indirectly elected President for a term on one year. CDL-AD(2018)010 - 4 - - Limitation through fixed number (two) of possible consecutive terms: Argentina, Austria, Bosnia and Herzegovina, Brazil, Bulgaria, Czech Republic, Estonia, Finland, France, Georgia, Germany, Israel, Kazakhstan, Latvia, Lithuania, Republic of Moldova, Russia, Slovakia, Slovenia, Ukraine; - Absolute ban on re-election: Armenia, Colombia, Republic of Korea, Kyrgyzstan, Malta, Mexico. 8. In almost all the presidential or semi-presidential systems under examination, the constitution sets limits on the President’s re-election: either an absolute ban (Colombia, Republic of Korea, Mexico), or a maximum number of two terms (Algeria, Turkey, USA), or of two consecutive terms (Brazil – two times four years, France – two times five years, Kazakhstan – two times five years and Russia – two times six years). The only exceptions to the limitation in Europe are Azerbaijan, Belarus and Cyprus, and in Latin America possibly Bolivia, Costa Rica and Venezuela. 9. In countries with a parliamentary system and a directly elected president, limits on re- election or on consecutive re-election are always provided (the prohibition is absolute in Armenia and in Malta), with the exception of Iceland. In parliamentary systems with an indirectly elected president, limits are provided with the exception of Italy, where the Constitution does not limit the presidential terms but there exists a consolidated practice of non-re-election.10 III. Some examples of limitations on presidential terms in recent constitutional history 10. The following section presents selected examples of recent constitutional changes in countries in different continents. A. Europe Azerbaijan 11. In a referendum held on 18 March 2009, voters overwhelmingly supported the constitutional amendment removing the two-term limit on the presidential mandate.11 This change was effective for the current holder of the office. 12. In 2016, a further amendment to Article 101 increased the term of the presidential mandate from five to seven years. 13. President Ilham Aliyev, in office succeeding his father since 2003, has been nominated as the ruling party’s candidate for the forthcoming 2018 presidential elections. He has called for early elections on 11 April 2018. If he wins, it will be his fourth term. Belarus 14. The Constitution of Belarus, as amended in 1996, provided for a two-term limit on the presidential mandate.12 On 7 September 2004, President Lukashenko, in office since 1994, 10 As the only exception, President Napolitano was re-elected in 2013 but resigned two years later. 11 Article 101 § 4 of the Constitution provided: “No one can be elected as the President of the Republic of Azerbaijan more than twice consecutively.” 12 Article 81 provided: The President shall be elected directly by the people of the Republic of Belarus for a term of office of five years by universal, free, equal, direct and secret ballot. The same person may be President for no more than two terms. […] - 5 - CDL-AD(2018)010 called a referendum to take place 17 October 2004, in which voters would be asked to answer the following single question: “Do you allow the first President of the Republic of Belarus Alexander Grigoryevich Lukashenko to participate in the presidential election as a candidate for the post of the President of the Republic of Belarus and do you accept Part 1 of Article 81 of the Constitution of the Republic of Belarus in the wording that follows: “The President shall be elected directly by the people of the Republic of Belarus for a term of five years by universal, free, equal, direct and secret ballot?” This question in fact covered both the question of the ability of President Lukashenko to run for a third term of office and the amendment of Article 81 by removing the two-term limitation. The result of the referendum overwhelmingly supported the proposal. 15. President Lukashenko was re-elected in 2006, 2010 and again, for a fifth term, in 2015. France 16. In France, the President has been directly elected since the constitutional reform of 1962. In 2000, following a referendum, the length of the presidential term was shortened from seven to five years, effective as of the presidential election of 2002. 17. On 23 July 2008, a two-term limit on consecutive presidential mandates was introduced.13 Turkey 18. Since 2007, the President of Turkey is elected through a direct vote (Article 101). The term of office is five years and the person may be re-elected once.14 19. Following the constitutional amendments of 2017, in case new elections have been decided by the Grand National Assembly during the second term of office of the President, he/she can run for the presidency one more time.15 Ukraine 20. The 1996 Constitution of Ukraine provided for a two-term limit on consecutive presidential mandates.16 21. President Leonid Kuchma won the 1994 presidential elections and won re-election for an additional five-year term in 1999. 22. In 2003, a year before the presidential elections in Ukraine, the debate on the terms of office of the acting President resulted in an appeal to the Constitutional Court of Ukraine. In December 2003 the Court ruled that the provision limiting the presidential terms applied only to persons elected after the entry into force of the Constitution of Ukraine. Therefore, a person newly elected the President of Ukraine in accordance with the Constitution of Ukraine in effect in 1999 had the right to run for presidency in the next presidential election in 2004.
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